No Real Threat: The Pentagon's Secret Database on Peaceful Protest

INTRODUCTIONIn December 2005, major media outlets began reporting that a highly secretive component of the Department of Defense was accumulating and maintaining information on peaceful groups within the United States. The reports were a disturbing echo of an earlier era of unchecked and illegal government surveillance — an era when the FBI under J. Edgar Hoover infiltrated civil rights and peace groups, and the United States military maintained secret files on tens of thousands of American citizens.

The disclosures cried out for congressional oversight and investigation. Yet Congress was silent. In an attempt to learn more about the extent of the Pentagon's surveillance activities and the policies that had authorized them, the American Civil Liberties Union and several of its state affiliates filed Freedom of Information Act requests on behalf of dozens of groups that had protested against the Administration's foreign policy. What we have learned is troubling. What we still don't know may be even more disturbing. It is time for Congress to act, and to ensure that Americans may once again exercise their First Amendment rights without fear that they will be tracked in a government database of suspicious activities.

Background On February 1, 2006, the American Civil Liberties Union and its affiliates filed multiple Freedom of Information Act requests seeking records relating to Pentagon surveillance of anti-war groups. A secret Pentagon database obtained by NBC News, parts of which were published in December 2005, had revealed that nearly four dozen peaceful political gatherings, most of which were aimed at protesting military recruitment or the war in Iraq, were included among more than 1500 "suspicious incidents" reported across the United States. (Lisa Myers et al., Is The Pentagon Spying on Americans? MSNBC.com, Dec. 14, 2005.) Subsequent news reports revealed that a highly secretive component of the Department of Defense, the Counterintelligence Field Activity Agency ("CIFA"), had been accumulating and maintaining information about domestic organizations and their peaceful political activities. CIFA, whose size and budget are classified, had been directed to track "potential terrorist threats" against the Department of Defense through reports known as Threat and Local Observation Notices ("TALON").

The TALON program was initiated in 2003 by former Deputy Secretary of Defense Paul Wolfowitz. (Michael Isikoff, Inside the Pentagon's Domestic Spying Program, NEWSWEEK, Jan. 30, 2006.) It was designed to permit civilians and military personnel to report on suspicious activity or terrorist threats near defense installations. CIFA would thereafter compile the nonvalidated "TALON reports" in a database, which would include the agency's assessment of whether the alleged threat was "credible" or "not credible." The TALON excerpts published by NBC News revealed, however, that the Department of Defense had strayed from its intended mission, sweeping in anti-war protests that occurred far from any military installation, and failing to remove reports of demonstrations that were deemed even by the Department of Defense to be "not credible" as threats. For example, one entry in the excerpt published by NBC News featured a student protest against military recruiters at New York State University in Albany; another noted that a planned demonstration at Fort Bragg, North Carolina had been determined not to be a credible threat because of its "peaceful" nature. Nonetheless, even those threat reports deemed "not credible" remained in the database.

Following NBC's revelation, Department of Defense officials ordered a review of the TALON database to determine whether information relating to individuals cleared of any threat had remained on file. Department of Defense regulations promulgated decades earlier prohibited the retention of non-threatening information about United States persons for more than ninety days. The regulations were established in the wake of Vietnam War-era spying on opponents of government policy – when military intelligence agents were found to have opened more than 100,000 files on American citizens – in an attempt to curb future unchecked surveillance.

The Pentagon's misuse of the TALON database must be viewed in the wider context of increased government surveillance of U.S. citizens. With the help of phone companies, the National Security Agency has been tapping phones and reading email without a warrant. The FBI has gathered information about peace activists, and recruited confidential informants inside groups like Greenpeace and PETA. All of these actions are part of a broad pattern of the executive branch using "national security" as an excuse for encroaching on the privacy and free speech rights of Americans without adequate oversight.

THE ACLU'S FOIA REQUESTSAlthough NBC's reporting, as well as subsequent reporting by the Washington Post and other newspapers, made clear that the Pentagon had violated even its own regulations in maintaining within a secret database numerous instances of non-violent protest activity, Congress took no formal action to investigate the reported abuses. In an effort to learn more about the extent of the Department of Defense's surveillance of U.S. citizens, as well as the policies under which such surveillance had occurred, the ACLU and its affiliates filed requests under the Freedom of Information Act on behalf of anti-war and social justice groups around the coun- for Peace, United for Peace and Justice, and dozens of local organizations in Florida, Georgia, Rhode Island, Maine, Pennsylvania, Washington, and California. Many of the groups on whose behalf the FOIA requests were submitted had already learned from the NBC News excerpts that anti-war protests that they had sponsored or attended were included in the Pentagon's threat database. The Rhode Island-based Community Coalition for Peace had discovered, for example, that their December 2004 protest outside of a National Guard recruitment station appeared in the database. The Broward Anti-War Coalition recognized one of its protests at a Florida air and sea show among the database threat entries.

The FOIA requests were submitted in February of 2006. In June, after several months during which the Pentagon was virtually nonresponsive, the ACLU filed suit in the United States District Court for the Eastern District of Pennsylvania to compel the Department of Defense to disclose records responsive to the FOIA request. Since then, under agreements negotiated with the Department of Justice and ordered by the court, the Department of Defense has disclosed hundreds of pages of documents, including dozens of TALON reports that reveal in far greater detail the extent to which the United States military improperly kept tabs on lawful, non-violent, First-Amendment activities.

THE DOCUMENTSDocuments obtained by the ACLU have revealed that the inclusion within the Pentagon's TALON database of traditional and constitutionally protected protest activities was more widespread than previously known. According to a memorandum released to the ACLU, as of February 10, 2006, of the entries deleted from the TALON database, 186 TALON reports involved "anti-military protests or demonstrations in the U.S." The document does not reveal whether any such reports remain in the database, though it does state that approximately 2,821 TALON reports involve what the Department describes as "U.S. person information."

Protests against the war in Iraq were a common trigger for TALON reporting. For example, a protest entitled "Stop the War NOW!" was reported as a potential terrorist threat in a March 2005 TALON. The TALON describes the protest, aimed at a military recruiting station and federal building in Akron, Ohio, as including a rally, march, and "Reading of Names of War Dead."

A February 2005 TALON focuses on protests planned by the War Resisters League ("WRL") near New York City recruiting stations. The document describes WRL as advocating "Gandhian nonviolence." The protests, the TALON states, were to include "a church service for peace," "lively signs and loud chants," a vigil, and a procession with coffins. CODEPINK, a women's group opposed to the war in Iraq, as well as the peace group United for Peace and Justice are mentioned as joining WRL in protest events. The report includes guidelines for "nonviolence training" in which Protesters agree that they "will not use physical violence or verbal abuse towards any person," that they "will not damage any property," and that they "will not carry weapons." Nonetheless, the report warns, without basis, that WRL members may favor "civil disobedience and vandalism."

Many of the TALON reports focus on anti-recruitment events and protests. For example, a TALON report about the avowedly nonviolent Broward Anti-War Coalition includes information from the Miami-Dade Police Department describing a protest planned for a Fort Lauderdale Air and Sea Show. The TALON report reveals that the U.S. Army Recruiting Command and the Joint Terrorism Task Force in Miami had been briefed on the planned protest, which was intended to "counter military recruitment and the ‘pro-war' message with ‘guerrilla theatre and other forms of subversive propaganda.'"

Similarly, the American Friends Service Committee ("AFSC") appears in a TALON report regarding the Quaker peace group's planned protests at a recruiting center in Springfield, Illinois (the TALON is amended to correct the location of the protests as "special agent of the federal protective service, U.S. Department of Homeland Security," provides information he received in an email alert from the AFSC: "[A] series of protest actions were planned in the Springfield, IL area . . . to focus on actions at military recruitment offices with the goals to include: raising awareness, education, visibility in community, visibility to recruiters as part of a national day of action focused on military recruiters." The source notes that the AFSC needs more community members to pass out flyers and "hold signs and banners."

The Rhode Island Community Coalition for Peace ("RICCP") also appears in a TALON report regarding its organizing of a protest in front of a National Guard recruiting station in downtown Providence. The TALON describes RICCP as "an emerging RI coalition in opposition to the war in Iraq" which will "hold a picketing action." The source, a "special agent of a federal law enforcement agency," reports RICCP's stated goals for a planning meeting as "‘creat[ing] awareness of an organized, actionoriented, anti-war movement in Providence'" through "one on one interactions at the picket." The TALON also records RICCP's slogan, "‘Stop the call of RI National Guard and end the occupation of Iraq.'" It appears from the document that the source obtained the information about RICCP from a "posting on an Internet bulletin board."

A November 2004 TALON report addresses a "protest against the Iraq war . . . planned by a Sacramento chapter of a U.S. domestic group at the Sacramento Military Entrance Processing Station." According to the report, "this specific group is deeply into ‘counter-recruiting,'" and views the station "as their last chance to influence a decision to enlist." The TALON relates that the San Francisco Joint Terrorism Task Force had advised commanders of the San Francisco and San Jose stations of the protests, and notes that "it appears this protest will most likely be peaceful, but some type of vandalism is always a possibility."

At least five other TALONS targeted protest activity on college campuses. An April 2005 TALON from an "active duty U.S. Army officer" reports on protests organized by the group Veterans for Peace ("VFP"), which the TALON describes as "a peaceful antiwar/ anti-military organization." The TALON notes that VFP members set up hundreds of white crosses representing soldiers killed in Iraq near the student union at New Mexico State University in Las Cruces, New Mexico. The TALON lists eight other university campuses where VFP planned to hold protests, including the University of New Orleans, Emory University, Kent State University, Howard University, and Northwestern University. The TALON also notes that although VFP applied for and received permission to hold the protest at New Mexico State University, the source could not determine whether VFP had "applied for or been granted permission to hold protest[s] on the campuses listed in this report." Without any evident basis, the TALON further states that although VFP is "a peaceful organization . . . there is potential [that] future protest[s] could become violent."

Two TALON reports from April 2005 describe anti-recruiting protests by students at the University of California campuses of Berkeley and Santa Cruz. The source for both TALONs, a "special agent of the federal protective service, U.S. Department of Homeland Security," relays protest information he received through email alerts. One such email, reproduced in the TALON report, announces: "Counter Recruitment has proven to be an effective tool in actually hindering the Military's ability to carry out this immoral and unjust war . . . . The Associated Students at the University of California (ASUC) passed a resolution that argued that military recruiters (who refuse to recruit gays and lesbians) violate the University of California's anti-discrimination policy and therefore should not be allowed access to ASUC facilities." Because of the "strong support for anti-war protests and movements in the past," the source declares that there is "a strong potential for a confrontation." In an update, the source reports that "60 Berkeley students filed into the career fair in ‘sign-file' and confronted the recruiters one at a time, challeng- ing their anti-gay policies and the war in Iraq. This action took over an hour and effectively shut down the Marine's operation for most of the day."

The Georgia State University Students for Peace and Justice appear in another April 2005 TALON. The source, another "special agent of the federal protective service, U.S. Department of Homeland Security," describes an email alert he received about an "Anti-Recruitment Picket . . . across from City Hall East." The group's plans for weekly protests are reported, along with its plans that "visually effective coffins will be in view." The Atlanta Police Department, the Georgia Information and Sharing Intelligence Center, and the Atlanta Recruiting Battalion were among the local organizations advised of the protests.

Another April 2005 TALON points to an altercation between a soldier and an individual at a university anti-war rally in New Orleans. According to the report, the soldier mistakenly arrived at the campus demonstration and was confronted by the individual. Despite acknowledging that "[i]t is unknown if the individuals involved in the incident are students at the local university or associated with the Veterans for Peace organization," the report alleges that the incident demonstrates that VFP should be viewed as a possible "threat" to Department of Defense personnel.

A TALON report listing Atlanta-area protests organized by the Georgia Peace and Justice Coalition ("GPJC") similarly contends that the Students for Peace and Justice Network poses a threat to Department of Defense personnel. Citing a Department of Homeland Security source, the TALON supports its claim by listing prior acts of civil disobedience in California and Texas, including a protest at the University of California Santa Cruz campus, a sit-in, and street theatre. Describing one protest in Austin, Texas, the document notes, "The Protesters blocked the entrance to the recruitment office with two coffins, one draped with an American flag and the other covered with an Iraqi flag, taped posters on the window of the office, and chanted, ‘No more war and occupation. You don't have to die for an education.'"

UNANSWERED QUESTIONSThe FOIA requests and litigation have contributed to our understanding of the Department of Defense's collection and maintenance of information about the lawful protest activities of U.S. citizens, but many questions remain unanswered. Although the Pentagon has, commendably, conceded that much of the information regarding anti-war and anti-recruitment activities should not have been retained in its TALON database, far too little is known about how the information was collected in the first place. It cannot be an accident or coincidence that at least 186 protest events involving U.S. citizens ended up in a Pentagon threat database; yet we still do not know under what guidance CIFA was operating when the information was collected. Moreover, the FOIA was aimed solely at one database about which there had already been public reporting. We do not know whether the Department of Defense maintains other threat databases that include similar information, nor whether Department of Defense personnel are engaged in other information-gathering about United States citizens. We do not know the extent to which other federal agencies might have been involved in collecting this information. We do not know whether the information improperly included in the TALON database was distributed to other government agencies. And, we have only the Pentagon's word that that the errors and misjudgments that led to widespread surveillance of U.S. citizens have been corrected.

It is time for Congress to hold oversight hearings to investigate how these abuses occurred and to ensure that they are not repeated. American citizens must once again be confident that they may exercise their constitutionally protected right to protest government policy without becoming targets of government scrutiny.